Terms of License and Use for WinOLS® and the EVC Reseller Marketplace

A. Introduction
I. General
1. EVC electronic GmbH, Am Pfauenzehnt 11a, 46539 Dinslaken ("EVC") is a leading provider of chip tuning solutions for automobiles. EVC is the developer and owner of the software WinOLS® in all versions ("WinOLS®"), a powerful software, especially for the development of files for chip tuning. EVC distributes licenses for WinOLS® primarily via the Internet and makes the corresponding software available for download.
2. WinOLS® contains a function with which compilations of chip tuning files and so-called map information ("Reseller-Projects") can be offered for sale by customers ("sellers"), which other customers can acquire by way of download ("buyers"; Seller and Buyer hereinafter referred to as the "User"). EVC is not involved in these purchase transactions, but exclusively provides the technical and organizational means (in particular servers on which Reseller-Projects are provided by the Seller) to enable the sale of Reseller-Projects ("Platform").
3. The following license and usage conditions in Section B. initially govern the sale of WinOLS® and the granting of rights of use (license) to this software. Section C. makes regulations for the use of the platform. Sections D. and E. contain general provisions that apply in the same way to Sections A. to C.

II. Scope
1. These terms and conditions of license and use apply to all business relationships with entrepreneurs (§ 14 BGB).
2. These license and terms of use apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the user shall only become part of the contract if and to the extent that EVC has expressly agreed to their validity.

B. Sale and Licensing of WinOLS®
The subject matter of this Section B. is the sale of WinOLS® and the granting of rights of use to this software by EVC to users on the basis of the terms and conditions set out below.

I. Subject of the License and Use Terms of Section B1.
1. The subject of Section B. of these License and Terms of Use is the permanent transfer of WinOLS® in the object code including the associated user documentation and] the granting of the rights specified in No. B. II. described rights of use. The hardware and software environment within which WinOLS® is to be used is also defined in the user documentation.
2. The nature and functionality of WinOLS® is conclusively determined by the user documentation. The information contained therein is to be understood as service descriptions and not as guarantees. A guarantee is only granted if it has been expressly designated as such.
3. EVC provides the user with WinOLS® and the user documentation by way of download via homepage www.evc.de. The download requires the creation of a user account in accordance with No. B. II.
4. Installation and configuration services are not covered by this Agreement.

II. User Account
1. To create the user account, the user provides EVC with the following data: company name, postal address, e-mail address and telephone number.
2. The User Account will be activated by EVC after the User has clicked on the confirmation link in the registration confirmation sent to his/her e-mail address, entered his/her access password on the registration page and has declared his/her agreement to these License and Terms of Use and the Privacy Policy by ticking the required spot on the registration page.
3. Activation and maintenance of the user account are free of charge for the user.
4. Data provided by the User to EVC for the purpose of opening the User Account must be provided completely and correctly and, if they change, must be updated by the User in his User Account without delay.
5. Users are obliged to keep the access password chosen during registration secret and to carefully secure access to their user account. Users are also obliged to inform EVC immediately if there are indications that a user account has been misused by third parties.
6.Each user undertakes to open only one user account. A user account is non-transferable.
7. EVC reserves the right to delete user accounts after a reasonable period of time if registration is not completed.
8. EVC also reserves the right to block user accounts in the event of any breach of contract, such as late payment.

III. Grant of rights
1. Upon full payment of the fee in accordance with No. B. III. of these Terms of License and Use, a non-exclusive, unlimited right to use WinOLS® to the extent granted in these Terms of License and Use. WinOLS® may only be used for the number of workstations at the same time that corresponds to the licenses purchased by the user. The permitted use includes the installation of WinOLS®, loading into the working memory and the intended use by the user. Under no circumstances shall the User have the right to rent or otherwise sublicense the acquired WinOLS®, to communicate it to the public or to make it available to the public by wire or wireless, or to make it available to third parties for a fee or free of charge, e.g. by way of Application Service Providing or as "Software as a Service". Point. B. II. 5. shall remain unaffected.
2. The user has no claim to the release of the source code.
3. The user is entitled to make a backup copy if this is necessary to secure future use. The user will visibly attach the note "backup copy" as well as a copyright notice of the manufacturer to the created backup copy.
4. The User is only entitled to decompile and reproduce WinOLS® to the extent provided for by law. However, this only applies if EVC has not made the necessary information available to the user upon request within a reasonable period of time.
5. The user is entitled to permanently transfer the purchased copy of WinOLS® to a third party by handing over the user documentation. In this case, he will completely cease using the Program, remove all installed copies of the Program from his computers and delete all copies on other data carriers or hand them over to EVC, unless he is legally obliged to keep them for a longer period of time.
5. If the User uses WinOLS® to an extent that exceeds the acquired rights of use in terms of quality (with regard to the type of permitted use) or quantitatively (with regard to the number of licenses purchased), the User shall immediately acquire the rights of use necessary for the permitted use. If he fails to do so, EVC will assert the rights to which it is entitled.
7. Copyright notices, serial numbers and other features of WinOLS® that serve to identify the program may not be removed or changed.

IV. Purchase price and maturity
The purchase price for WinOLS® depends on the specific range of functions and is shown on the homepage www.evc.de. The purchase price is due with the download of WinOLS®.

V. Warranty
1. EVC provides a guarantee for the agreed quality as well as for the fact that the user can use WinOLS® without infringing the rights of third parties. The warranty for material defects does not apply to defects resulting from WinOLS® being used in a hardware and software environment that does not meet the requirements specified in the User Documentation or to changes and modifications made by the User to the Software without being entitled to do so by law, this Agreement or on the basis of a prior written consent of EVC.
2. The user must check WinOLS® for obvious defects immediately upon receipt and notify EVC of them immediately if they exist, otherwise a warranty for these defects is excluded. The same applies if such a defect becomes apparent later. Section 377 of the German Commercial Code shall apply.
3. In the event of a material defect, EVC is initially entitled to subsequent performance, i.e. at its own discretion to remedy the defect (rectification) or replacement delivery. As part of the replacement delivery, the user will take over a new version of the software, if necessary, unless this leads to unreasonable impairments. In the event of defects of title, EVC shall, at its own discretion, provide the user with a legally impeccable possibility of using WinOLS® or modify it in such a way that no further rights of third parties are infringed.
4. EVC fulfils its obligation to rectify by making updates with an automatic installation routine available for download on the homepage www.evc.de and by offering the user telephone support to solve any installation problems that may arise.
5. The right of the user to reduce the purchase price or withdraw from the contract at his discretion in the event of two failures of the repair or replacement delivery remains unaffected. A right of withdrawal does not exist in the case of insignificant defects. If the User claims damages or reimbursement of futile expenses, EVC shall be liable in accordance with Section E.
6. Claims of the user due to defects of quality and title shall become statute-barred after one year; this does not apply in the cases of No. E. 1 a) to d). In the case of a sale on a data carrier, the limitation period begins with the delivery of WinOLS®, in the case of a sale by means of a download from the Internet after notification and activation of the access data for the download area.

C. Terms and Conditions for Use of the Platform for the Purpose of Selling Reseller-Projects
The subject of this section is the provision for the internet-based sale of Reseller-Projects from Seller to Buyer ("Project Purchase Agreement") conducted through EVC's Platform.

I. Scope of services
1. EVC provides Users with servers and software by means of which Sellers make available for sale Reseller-Projects based on WinOLS® by way of upload, which can be purchased by the Buyer by way of download ("Platform Services").
2. The use of the Platform Services requires that the User uses the WinOLS® software and rights of use in accordance with No. I. and II. and – in the event that the User is a Seller – EVC acquires the WinOLS® integrated function to the Seller, which enables the sale of Reseller-Projects via WinOLS® ("Reseller Function"), after payment of a set-up fee pursuant to No. C. 6. I.
3. EVC provides the Platform and its functionalities without a commitment of specific availability. The availability of the Platform at all times is not a service owed by EVC. In particular, necessary maintenance work, security reasons of a compelling nature and events beyond EVC's control (e.g. unauthorised access to server provided by EVC, disruptions to public communication networks and the Internet, power failures or similar events) may lead to disruptions or the temporary cessation of EVC's services and the accessibility of the Platform, without this giving rise to any liability on the part of EVC, unless EVC culpably caused the said circumstances.
4. EVC is entitled to temporarily restrict or suspend Users' access to the Platform at any time if this is necessary with regard to security, for example in the event of attacks from the Internet (e.g. denial-of-service attacks, other server overloads caused by third parties), integrity of the servers used to operate the Platform and/or to carry out mandatory technical, in particular security-related measures (such as security updates), is necessary for compelling reasons.
5. EVC protects the Reseller-Projects provided by users on the platform with state-of-the-art technical security systems; this applies in particular to the servers provided by EVC and other hardware and software used for the operation of the platform. However, EVC and the User agree, as a nature of the Platform Services provided by EVC, that absolute protection against attacks by third parties is not an owed object of performance. Accordingly, EVC shall not be liable in particular for attacks by third parties of any kind that result in the third party gaining unlawful access to a user's Reseller-Projects and misusing Reseller-Projects, for example for its own commercial purposes.
6. When expanding the MB memory, fees are incurred, which can www.evc.de be viewed on the homepage. Also visible under evc.de is the amount of the existing storage space.

II. Registration as a User and Conclusion of the User Agreement
1. The use of the platform for the purchase or sale of Reseller-Projects requires registration as a user, which takes place by opening the user account in accordance with Section B. II. With the activation of the user account by EVC, a contract for the use of the platform services ("User Agreement") is concluded between EVC and the User.
2. If a user intends to sell tuning products, the activation of the reseller function is required in addition to the activation of the user account. The activation of the reseller function requires a request by the user, which must be sent to EVC in text form (e.g. e-mail). The activation of the reseller function is at the discretion of EVC. The user is not entitled to activate the reseller function.

III. Project purchase agreements between users
1. A Project Purchase Agreement for a Reseller-Projects is concluded when the Seller makes a Reseller-Projects available on the Platform by way of an upload (Offer) and the Buyer downloads this Reseller-Projects by clicking on the button (acceptance); acceptance already takes place by clicking on the "Buy" button.
2. Accordingly, a contractual and/or non-contractual liability of EVC arising from or in connection with project purchase agreements, in particular due to non-performance, non-timely or non-contractual performance (e.g. material and legal defects of Reseller-Projects, lack of commercial or other usability of Reseller-Projects for the buyer), is excluded. Seller shall indemnify EVC and its employees and/or agents against any form of claim against Buyer, Buyer's customer or other third party for defective Reseller-Projects; the provision of No. C. VII. shall apply to this indemnification obligation of EVC.
3. Payment processing takes place directly between seller and buyer. Users have either (a) the use of credit or (b) the involvement of the payment service provider NEXI GmbH
a) credits: The buyer buys credit points from the seller and pays the purchase price directly to the seller; this payment is not made via the Platform in the manner agreed between the Seller and the Buyer (e.g. bank transfer, PayPal, etc.). The seller credits the credit to the buyer via a WinOLS® integrated function.
b) NEXI GmbH: EVC has entered into a framework agreement with the payment service provider NEXI GmbH, which provides its services for the payment processing of project purchase agreements between users. For a specific transaction, the buyer and the seller each conclude a separate payment service contract with NEXI GmbH, which takes over the processing of the purchase price payment between the buyer and seller. EVC shall provide NEXI GmbH on behalf of the Buyer or EVC with the necessary information to carry out the payment processing in accordance with this Section. C. III. 3. b). The users hereby expressly authorize EVC to pass on, process and transmit the relevant information (in particular payment amounts as well as user and project data) to NEXI GmbH and hereby expressly consent to such disclosure, processing and transmission. The consent of the users required under data protection law is also hereby granted – if necessary.
4. The Seller undertakes vis-à-vis EVC to remove any personal data of third parties contained in Reseller-Projects prior to making them available on the Platform and to indemnify EVC against all claims by third parties due to a violation of the applicable data protection law in accordance with No. C. VII.

IV. Principles of Use
1. Users acknowledge that EVC itself does not offer Reseller-Projects for sale, does not purchase offered Reseller-Projects and does not become a party to the Project. Purchase Agreements concluded exclusively between the Users of the Platform. The respective sellers are solely responsible for the offers of Reseller-Projects provided on the platform. This applies to all content.
2. In particular, the user is not entitled to use the platform with licenses obtained from WinOLS® illegally (e.g. removal of the manufacturer's copy protection (cracking)).
3. The Seller assures EVC that the Reseller-Projects provided by the Seller on the Platform
a) do not infringe any rights of third parties, in particular no industrial property rights, and that the Buyer can use the Reseller-Projects without infringing the rights of third parties,
b) do not contain any personal data,
c) do not violate any legal provisions,
d) are compatible with the WinOLS® Software,
e) information on vehicle manufacturers, model, engine power and ECU type to enable Buyers to carry out targeted searches and unique identification,
f) do not interfere with or otherwise adversely affect the functionality of WinOLS® Platform and/or Software in any way, and g) do not contain software viruses, worms, Trojan horses or other harmful files, scripts and programs.
4. Users agree to conclude and execute Project Purchase Agreements exclusively through the platform provided by EVC.

V. Right to amend
EVC reserves the right to change the platform and certain functionalities at any time, as well as to discontinue the provision of the platform in whole or in part after giving reasonable notice; EVC will take the legitimate interests of users into account in doing so. EVC reserves the right, in particular, to make changes to adapt the system to the state of the art, to optimize the system, in particular to improve user-friendliness, and to make changes that are necessary for error correction, updating and completion, program optimization, or for licensing reasons.

VI. Remuneration
1. For the activation of the reseller function, EVC receives a setup fee, which can be viewed by registered users on the homepage www.evc.de. The set-up fee is due upon activation of the reseller function and must be paid within 14 calendar days of invoicing.
2. For each project purchase agreement concluded between the Seller and the Buyer in accordance with Clause C. III., EVC shall receive remuneration from the Seller, which is www.evc.de visible to registered users on the homepage. EVC will issue a collective invoice to Seller no later than the 15th of each calendar month for the total compensation for all Reseller-Projects sold by Seller in the preceding month. The collective invoice will be sent to the seller in electronic form to the email address stored in the user account. The seller must only use the payment methods specified in the invoice. The remuneration payable to EVC is due upon conclusion of the Project Purchase Agreement and is payable within 14 calendar days from the date of invoicing.

VII. Indemnification
1. The User undertakes to indemnify EVC against all claims of third parties to which the third party is entitled due to defects in quality and title of Reseller-Projects, an infringement of the rights of the third party or other persons, a violation of statutory provisions and provisions of these License and Terms of Use, unless the User is not responsible for the claim by the third party.
2. In addition, the User undertakes to reimburse all costs incurred by EVC as a result of the use by third parties. Reimbursable costs also include the costs of an appropriate legal defence.
3. In the event of a claim by third parties, the User shall promptly, truthfully and completely provide EVC with all information necessary for the examination of the claims and a defense.

VIII. Removal of Reseller-Projects; Termination of the user contract and deletion of a user account
1. EVC reserves the right to remove or delete individual Reseller-Projects in whole or in part, or to otherwise prevent or terminate their provision on the Platform if and to the extent that these Reseller-Projects violate the provisions of this License and Use Agreement, unless the User providing the Reseller-Project on the Platform is not responsible for the violation.
2. The user can terminate the user agreement at any time in text form, stating his user ID, license account number, first and last name and e-mail address.
3. EVC may terminate the User Agreement with notice of one month in text form (without giving reasons). Upon termination of the User Agreement, the User is no longer entitled to use the Platform; EVC also reserves the right to delete the user account in the event of termination.
4. In the event of a violation of these License and Terms of Use for which the User is responsible or any other violation of rights for which the User is responsible in connection with the use of the Platform, EVC may terminate the User Agreement without notice with immediate effect for good cause in text form, as well as exclude the User from using the Platform with immediate effect and delete his User Account; further claims and rights of EVC in accordance with these license and use conditions and/or statutory provisions remain unaffected.
5. The termination of this User Agreement, whether by EVC or the User, shall not affect further contracts between EVC and the User (e.g. purchase agreements via WinOLS®) as well as Project Purchase Agreements concluded between Users.

D. Limitation of Liability
1. EVC shall be liable to Users without limitation
a) in the event of intent or gross negligence,
b) for injury to life, limb or health,
c) in accordance with the provisions of the Product Liability Act and
d) to the extent of a guarantee assumed by EVC.
2. In the event of a slightly negligent breach of an obligation that is essential for the achievement of the purpose of the contract (cardinal obligation), EVC's liability is limited in amount to the damage that is foreseeable and typical according to the nature of the transaction in question.
3. There is no further liability on the part of EVC.
4. The foregoing limitation of liability also applies to the personal liability of EVC's employees, representatives and bodies.
5. EVC remains open to the objection of contributory negligence. In particular, the user has the duty to back up data and to defend against malware in accordance with the current state of the art.

E. Other provisions
1. EVC complies with the relevant data protection regulations in the context of the processing of personal data and uses the user's personal data only in accordance with the provisions of its privacy policy. EVC's privacy policy can be viewed and saved at any time on the homepage www.evc.de.
2. The parties are aware that WinOLS® may be subject to export and import restrictions. In particular, there may be licensing requirements or restrictions on the use of the software or related technologies abroad. The User will comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations. The fulfilment of the contract by EVC is subject to the proviso that there are no obstacles to the fulfilment due to national and international regulations of export and import law as well as no other statutory provisions.
3. German law shall apply to these terms and conditions of licence and use, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11.
4. 1980 (UN Convention on the International Sale of Goods). The exclusive – also international – place of jurisdiction is Duisburg.
5. Insofar as these terms and conditions of licence and use contain gaps in the provisions, those legally effective provisions shall be deemed to have been agreed to fill these gaps which the parties would have agreed to in accordance with the economic objectives and purpose of these terms and conditions of use if they had known about the loophole.

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